Most important legal stories in 2013

ABA Journal Holiday Weekly

Most important legal stories in 2013

By Victor Li

Dec 26, 2013, 07:15 pm CST

Perhaps the best way to understand the biggest legal events in 2013 is to hit ABAJournal.com. Events from the past played a heavy influence on some of the year’s biggest legal stories. Civil rights groups recoiled in horror when the U.S. Supreme Court all but obliterated a seminal law in American history that bans voting discrimination. However, those groups also had reason to cheer, as the court also gutted a more recent law that had restricted the rights of homosexuals. Meanwhile, other battles from years past continued to dominate the headlines in 2013, including a new front to last year’s biggest legal story (the Affordable Care Act). It just goes to show that wars can continue long after the winners and losers fade into history.

1. Edward Snowden blows the lid off the National Security Agency’s surveillance program.

When the Guardian and Washington Post published in June information leaked to them by 30-year-old tech consultant Edward Snowden about the United States government’s massive electronic surveillance program, they shined an unwelcome spotlight on perhaps the most secretive agency in the federal government. Nicknamed “no such agency,” the National Security Agency has been eavesdropping on Americans and foreigners for several years. Its clandestine surveillance has included mining metadata from phone calls and emails, hacking tech companies, listening in on phone calls made by world leaders, and analyzing an individual’s Web browsing history. The outrage over Snowden’s disclosures have led to proposed bills in the House and Senate to reform or rein in the NSA’s program. Meanwhile, Snowden has fled the United States and currently has temporary asylum in Russia.

2. Gay marriage gains acceptance.

2013 turned out to be a banner year for gay marriage. In June, the U.S. Supreme Court ruled in United States v. Windsor that section three of the Defense of Marriage Act, which defined marriage for federal purposes as a union between a man and woman, was unconstitutional. While the court punted on the case of Hollingsworth v. Perry, which challenged California’s ban on same-sex marriages (the case featured the odd-couple alliance between two super litigators: liberal David Boies of Boies, Schiller & Flexner and conservative Ted Olson of Gibson, Dunn & Crutcher), several states have passed laws approving or legalizing gay marriages. Last week, New Mexico became the 17th state (including the District of Columbia) to do so.

3. Affordable Care Act under fire—again.

Last year, the Affordable Care Act survived a constitutional challenge when the Supreme Court upheld the individual mandate that makes up the crux of the law. Despite that, critics of the Affordable Care Act continued to look for ways to weaken or even get rid of the law in 2013. In October, the attempt by the U.S. House of Representatives’ Republican majority to defund the Affordable Care Act was at the heart of the budget impasse that forced this year’s 16-day governmental shutdown. That attempt fizzled, and Republicans ultimately agreed to reopen the government with almost no concessions from the president. However, President Barack Obama then spent the rest of 2013 making those Republicans look good as the law’s rollout went about as smoothly as the Titanic’s maiden voyage. The website’s numerous bugs took months to fix, and Obama himself had to delay or change several aspects of the law, including putting off the employer mandate and giving hardship exemptions to people who lost their previous plans. Meanwhile, the lawsuits will continue in 2014 as groups have filed several new challenges to the law. Additionally, the Supreme Court will revisit the Affordable Care Act as the justices agreed to hear a challenge to the contraception mandate in the 2013-2014 term.

4. Supreme Court guts Voting Rights Act.
One of the seminal laws in American history is on life support after the Supreme Court in June tossed out a section of the Voting Rights Act that requires most of the South to have the Justice Department approve any changes in voting practices or districts. The court, which struck the provision in a 5-4 vote, found that the DOJ could continue to preclear districts—however, the court ruled that the formula used to determine which districts needed oversight was antiquated and outmoded. Chief Justice John Roberts wrote that “things have changed dramatically” from the days when black Americans in the South were routinely denied the right to vote. The law continued to punish the South “based on decades-old data and eradicated practices,” Roberts wrote. Several states immediately jumped on the court’s decision and started making changes to their voting practices. The DOJ filed suit against Texas over its strict voter ID law, while civil rights groups took on a similar law in North Carolina.

5. Great year for gun rights.
The gun rights lobby couldn’t have asked for a better 2013. After the Newtown school shooting in December 2012, some kind of legislation increasing regulation of firearms seemed like a certainty. At the very least, more extensive background checks looked like a lock, while there was even the possibility that the National Rifle Association’s nightmare scenario—the reinstitution of the federal assault weapons ban that expired in 2004—could come true. As 2013 closed, none of that happened. A modest bill to require background checks for all gun sales was killed by the U.S. Senate in April.

6. Law school enrollment decreases.
According to figures released by the ABA Section of Legal Education and Admissions to the Bar in December, law school enrollment is down 11 percent compared to 2012 and 24 percent from 2010. In terms of raw numbers, in 2013 there was a drop of 4,806 students from the fall of 2012, when 44,481 students enrolled at ABA-accredited law schools and an even larger decrease of 12,813 students from 2010. 2013 marked the lowest total enrollment at ABA-accredited schools since 1975. Kyle McEntee, executive director of Law School Transparency, said there was good news and bad news in the massive decline in enrollments. On the plus side, McEntee says the figures suggest that enrollments are coming closer to matching the Bureau of Labor Statistics job projections for the legal sector. Unfortunately, he also says that enrollment figures are still 20 to 25 percent higher than they should be.

7. Democrats get rid of filibuster for judicial nominees.

Harry Reid finally got fed up with constant Republican filibusters of President Obama’s judicial nominees. So he and Senate Democrats decided to do something about it. Democrats pushed through a rare mid-session rule change that eliminated filibusters for judicial appointments in order to force up-and-down votes for three of the president’s stalled nominees to the U.S. Court of Appeals for the District of Columbia Circuit. The move could have wide-ranging repercussions in 2014. Control of the Senate is at stake in the midterm elections, and Justice Ruth Bader Ginsburg has come under pressure to retire while Obama is still president.

Gideon v. Wainwright, the Supreme Court case that guaranteed that all defendants had the right to counsel, celebrated its 50th anniversary in 2013. Despite that guarantee, many defendants continue to lack effective counsel because public defender offices are overworked and underfunded. Several courts have weighed in, allowing public defender offices to decline cases, including the Florida Supreme Court in May. Meanwhile, a federal district judge in Washington state found that two cities systematically violated the rights of indigent individuals by slashing the budgets of their public defenders’ offices.